[Western Railroad Co. v. Huss.] road, as definitely fixed, and within twenty miles of the Georgia State line the north-eastern terminus of the railroad, as chartered. The record, as we have said, fails to show that the Wilis Valley Railroad Company sold any other lands, granted by Congress to aid in its construction. We are not permitted to presume, as a ground of reversal, that the railroad company had previously sold, of the lands granted, another tract, or other tracts, not included within the twenty continuous miles, in which the present lands are situate. There is, therefore, a failure to show that the railroad corporation had exhausted the absolute, unconditional power to sell one hundred and twenty sections, granted to it by law, by electing to sell, and selling, any portion of the lands lying within some section of twenty continuous miles, other than that in which the present tract is included. The Alabama and Chattanooga Railroad Company acquired all the chartered powers of the Wills Valley Railroad Company. See acts approved October 6th, 1868, and November 17th, 1868; Sess. Acts, 207, 345. It acquired no right to rescind a valid sale of land previously made by the latter. Neither the mortgage to the State of Alabama, nor the subsequent re-conveyance by the State to the railroad company, embraced the lands here sued for, for neither mortgagor had any interest in the lands it could convey. The judgment of the Circuit Court is affirmed. Western Railroad Co. v. Huss. Action against Railroad Company, for Injuries to Stock. 1. When action does not lie.--An action for damages can not be maintained against a railroad company, on account of injuries to stock by trains running on its road, when such injuries occurred after the company had ceased to own or control the road, and while it was owned and operated by other corporations. APPEAL from the Circuit Court of Macon. Tried before the Hon. JAS. E. COBB. This action was brought by John C. Huss, against the Western Railroad Company of Alabama, a domestic corporation; and was commenced before a justice of the peace, on [Western Railroad Co. v. Huss.] the 18th October, 1876. On appeal to the Circuit Court, the plaintiff there filed a complaint, claiming "twenty-five dollars as damages, for negligently running over and injuring a cow, the property of plaintiff, about the month of October, 1876, with defendant's railroad cars, on its railroad track in said county." The defendant pleaded the general issue, "in short by consent, with leave to give in evidence any matter that might be specially pleaded;" and the cause was tried on issue joined on this plea. On the trial," as the bill of exceptions states, there was parol evidence tending to show that the railroad known as the Western railroad, on which it was proved the injury occurred, was owned and controlled, prior to said trespass and injury, by the Western Railroad Company of Alabama; and there was also evidence, both parol and documentary, tending to show that, at the time of the alleged trespass, the Georgia Railroad and Banking Company, and the Central Railroad and Banking Company, of Georgia, owned said road, and were running cars on it, and in possession and control thereof. To prove title in said road, the defendant. offered a deed," a copy of which purports to be set out in the bill of exceptions, but which is not shown any where in the record; "to the introduction of which deed, without proof of execution, the plaintiff objected, and the court sustained the objection; to which the defendant excepted. The defendant then offered to prove the handwriting of the maker of the deed, by the testimony of the defendant's attorney in this case; to which offer the plaintiff objected, because there were living witnesses to the execution of said deed, and they were not produced; which objection the court sustained, and the defendant excepted. The defendant then offered to prove, that the said Georgia Railroad and Banking Company, and the Central Railroad and Banking Company, of Georgia, were the owners of the Western railroad; but the court, on objection by plaintiff, would not allow said proof to be made by parol, and the defendant excepted. The court charged the jury, among other things, that if they believed, from the evidence, that prior to the occurrence of the alleged injury, if any occurred, the Western Railroad Company owned said road, then the presumption is, that said company continued to own and control said road, until the contrary appears by competent evidence. The defendant excepted to this charge, and requested the court, in writing, to charge the jury, that if they believed, from the evidence, that the said Western railroad was owned and controlled, at the time the alleged injury occurred, entirely by other corporations than the defendant, then they must find for the defendant. The court refused this charge, and the de [Walker v. Crawford.] fendant excepted to its refusal." These several rulings of the court are now assigned as error. GEO. P. HARRISON, for the appellant. W. C. BREWER, contra, SOMERVILLE, J.-The rulings of the Circuit Court in this case, as shown by the bill of exceptions, are in conflict with the principles enunciated in the case of Western Railroad Company v. Davis, at the last term.-66 Ala. 578. The judgment is, therefore, reversed, and the cause re manded. Walker v. Crawford. Bill in Equity by Vendor, to subject Lands to Payment of 1. Purchase-Money. What is final decree; when appeal lies.—A final decree in a chancery cause, such as will support an appeal, is not necessarily the last decree rendered, by which all proceedings in the cause are terminated, and nothing is left open for the future judgment or action of the court; but it is a decree which determines the substantial merits of the controversy, all the equities of the case, though there may remain a reference to be had, or the adjustment of some incidental or dependent matter. 2. Same.-Under a bill tiled to subject land to the payment of the purchase-money, against the original purchaser, who makes no defense, and a sub-purchaser in possession, who pleads payment and adverse possession under claim of title; a decree rendered on a submission on pleadings and proof, declaring that the complainant is entitled to the relief prayed, and has a lien on the lands for the unpaid purchase-money, and ordering a reference to the register to ascertain and report the amount still due and unpaid, is not a final decree, such as will support an appeal, but is the proper interlocutory decree best adapted to such a case. The final decree is that which confirms the report of the register, ascertaining the amount of unpaid purchase-money, and orders a sale of the lands for its satisfaction. 3. Rights and remedies of rendor, 'when purchase-money is unpaid. When the vendor of lands places the purchaser in possession, but retains the legal title as security for the payment of the purchase-money, all the essential incidents of a mortgage attach as between the parties; and the vendor may maintain ejectment to recover the possession, or may subject the land by bill in equity to the payment of the purchase-money, although an action at law to recover it has been barred by the statute of limitations. 4. Adverse possession by purchaser under executory contract.—When a purchaser of lands, under an executory contract, is let into possession, not having paid the purchase-money, and not having received a convey [Walker v. Crawford.] ance, he holds in subordination to the title of the vendor; and he can not defeat a suit in equity by the vendor to charge the lands with the payment of the purchase-money, by interposing the lapse of time as a defense, without showing that his possession was open and notorious, asserted as hostile to the right and title of the vendor, and continued long enough to bar a recovery at law under the statute of limitations. 5. Adverse possession by sub-purchaser.—Although the purchaser of lands under an executory contract, not having paid the purchase-money, nor received a conveyance, does not hold adversely to his vendor; yet, if he sells and conveys to a third person, who pays the stipulated price, is let into possession, and receives a conveyance of the title in fee-simple, such sub-purchaser may hold adversely to the original vendor, and may acquire a title under such adverse possession and the statute of limitations. APPEAL from the Chancery Court of Tallapoosa. The bill in this case was filed on the 19th February, 1878, by Daniel Crawford, against William II. Thomas, George F. Walker, and the personal representatives and heirs at law of Willis Maxwell, deceased; and sought to subject certain lands, in the possession of the defendants, to the payment of the unpaid purchase-money due from said Thomas as the original purchaser. The lands were sold, with other tracts, at a time not shown by the record, by a commissioner appointed by the Chancery Court of Tallapoosa, under a decree of sale rendered by said court; and were bought at that sale by Daniel Crawford and Alexander White, each paying one-half of the purchase money, and being equally interested in the land. They received a certificate of purchase from the commissioner, which was left by Crawford in the hands of White, in order that he might obtain a conveyance when the purchase-money was paid. On or about November 25th, 1850, White sold a half-section of the lands so purchased, being the part involved in this suit, to said W. H. Thomas, at the price of $1,500; putting him in possession, and executing to him a bond for titles. A part of the purchase-money was paid in cash, and for the residue, $500, Thomas gave his promissory note, payable to said White "by the first day of June, 1852, with interest from the 25th November, 1850;" the note reciting that its consideration “is for land lying in Tallapoosa county," which was particularly described. Some time during the year 1854, or 1855, White and Crawford had a settlement of all matters relating to their joint purchase of lands, when White relinquished all his interest in the lands to Crawford, and also transferred to him the said note of Thomas; and their purchase of the lands having been reported to the Chancery Court, in August, 1859, a deed for the lands was executed to Crawford, under the order of the court, by the register. The note of Thomas was made an exhibit to the bill, and showed several partial payments indorsed on it. [Walker v. Crawford.] the 1st December, 1859, Thomas sold a portion of the land, containing about 218 acres, to one George Shealy, who paid the purchase-money, and was placed in possession; and he continued in the possession thereof until some time in 1866, or 1867, when he sold to one Levi Longshore, to whom a conveyance was executed by Thomas, on his payment of the purchasemoney to Shealy. In 1875, at what time is not shown, Longshore sold and conveyed to said George F. Walker, who paid the purchase-money, and was in possession when the bill was filed. A decree pro confesso was taken against Thomas. An answer to the bill was filed by Walker, denying the complainant's title and asserted lien; claiming to be a purchaser for valuable consideration paid, without any knowledge or notice of the rights asserted by the bill; and pleading adverse possession under color of title, the statutes of limitation of ten and twenty years, and payment. No defense was made by the other defendants. The cause being submitted on pleadings and proof, the chancellor rendered a decree in vacation, which was filed in court on the 26th September, 1879, as follows: "It is adjudged, that the complainant is entitled to the relief he prays for in his bill. It is therefore ordered and decreed, that the complainant has a lien on the said lands," describing them, "for the unpaid purchase-money. It is further ordered and decreed, that it be, and is hereby, referred to the register, to ascertain and report, at the next term of this court, the amount yet due by the said W. H Thomas on the said note mentioned in the pleadings, for the purchase-money of said land, including interest thereon, deducting payments made," &c. Under this reference, the reg ister reported, to a special term held in January, 180, that the balance of purchase-money due and unpaid, with interest, was $1,623.64; and at the July term, 1880, the chancellor confirmed the report, overruling several exceptions filed by Walker, and rendered the following decree: "It is therefore or dered and decreed, that unless the said W. H. Thomas shall, within thirty days from the filing of this decree, pay, or cause to be paid, the said sum of money so reported to be due to the complainant, with interest thereon from January 20th, 1880, and the costs of this suit as taxed by the register (for which, if necessary, execution may issue), the said register proceed without delay to sell said lands." The appeal was sued out, on. the 30th October, 1880, by Walker, who here assigns as error the decree declaring a lien, the overruling of his several exceptions to the register's report, and the final decree ordering a sale of the lands. A motion was submitted by the appellee to strike out the first assignment |